Within Boundaries

Counsel magazine

Law in practice - Witness Familiarisation

Paul Epstein QC and Ed Williams explain witness familiarisation – the training, judicial attitudes, and how to stay within professional boundaries

In the recent High Court battle of the oligarchs between the late Boris Berezovsky and Roman Abramovich the case turned on conversations several decades earlier. What the two men said and how they said it was central to Mrs Justice Gloster's eventual judgment dismissing Mr Berezovsky's £5bn claim.

Mr Berezovsky was found to be "an unimpressive, and inherently unreliable, witness, who regarded truth as a transitory, ﬂexible concept, which could be moulded to suit his current purposes sometimes he was clearly making his evidence up as he went along in response to the perceived difficulty in answering the questions in a manner consistent with his case ... He embroidered and supplemented statements in his witness statements, or directly contradicted them. He departed from his own previous oral evidence, sometimes within minutes of having given it." Mr Abramovich however was found to have given "careful and thoughtful answers, which were focused on the speciﬁc issues about which he was being questioned. At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying the question which he was being asked. He was meticulous in making sure that, despite the difficulties of the translation process, he understood the sense of the questions which were being put to him ... He was not afraid to give answers which a less scrupulous witness would have considered unhelpful to his case..."

Mr Abramovich had received witness familiarisation training. Between his ﬁrst and second appearances before the Commons Select Committee on media and cultural a airs it is understood that Mr James Murdoch underwent communications training in how to give his evidence in the best possible light. The perception, certainly amongst media reports, was of a much improved performance second time around from Mr James Murdoch.

As these examples show, witnesses who are about to face difficult and challenging questions at a court, tribunal, select committee or public enquiry may beneﬁt from witness familiarisation training. Such training does not only explain what will happen to them whilst giving evidence; they can also practise being cross-examined, albeit not on the facts of their case.

Some practitioners and judges would view such training as anathema to the principle that the witness must give unrehearsed and unvarnished evidence. It is though increasingly a feature of the services that solicitors look to be able to offer their clients as a way of minimising litigation risk. Some members of the judiciary have even commented on the beneﬁts of some kind of witness training. In R v. Salisbury (unreported 19 May 2004; affirmed [2005] EWCA Crim 3107) Pitchford J. said:

"What [the witnesses] would have received was knowledge of the process involved. It was lack of knowledge and understanding which created demand for support in the ﬁrst place. Acquisition of knowledge and understanding has probably prepared them better for the experience of giving evidence. They will be better able to give a sequential and coherent account."

The BSB 'Guidance on Witness Preparation' states that "witness familiarisation arrangements are not only permissible; they are to be welcomed."

Unlike in the US, where whole mock courtrooms are erected with witnesses being cross-examined on the very evidence they are going to give at trial, such coaching is impermissible this side of the Atlantic. Paragraph 705(a) of the BSB Code of Conduct expressly states that a barrister must not "rehearse, practice or coach a witness in relation to his/her evidence." The Code goes on to state that "the line between (a) the legitimate preparation of a witness and his/her evidence for a current or forthcoming trial or hearing and (b) impermissible rehearsing or coaching of a witness, may not always be understood."

The leading case on witness training is the decision of the Court of Appeal in R v. Momodou [2005] 2 All ER 571, CA, which has been referred to without disapproval in a civil case, Ultraframe v Fielding EWHC 1638 (Ch).

In Momodou, one training provider had created practice case studies for the witnesses to be cross-examined on that, although hypothetical, had similarities with the facts of the actual case. The witnesses were also trained together and not separately. The Court of Appeal held that this type of training had crossed the boundary from mere familiarisation into coaching:

"The witness should give his or her own evidence, so far as practicable uninﬂ uenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids, any possibility that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training."

Training that involved "discussion about proposed or intended evidence" is to be prohibited. However:

"This principle does not preclude pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works... Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness's ownuncontaminated evidence."

The question then is what amounts to sensible preparation so that witnesses can experience the giving of evidence, but without the lawyers crossing professional boundaries.

One of the most common forms of preparing a witness is the steps taken by the lawyers instructed in the litigation. Many solicitors offer this service to their clients. Alternatively counsel is invited to provide some guidance on court procedure when advising in conference, often towards the end. Frequently it is dealt with on the ﬁrst morning of the hearing.

For those looking for experiential familiarisation training, one increasingly popular form of training is participation in a mock hearing - growing in popularity perhaps because it can be fun and can also be used as a way of cementing a relationship with an important client. Typically it is used to train a group of people. Some may be witnesses in a forthcoming hearing but that is not a prerequisite to participation. Usually some or all of the participants are given a scenario some time in advance of the mock hearing. Barristers are sometimes brought in as cross-examiners for part of the day or to play the part of the judge.

A third type involves a familiarisation of the court process, followed by a cross examination on a role-play. Here, the participant is given documents and a role or script in advance of the session. The participant is then cross-examined on that scenario, albeit that they do not have the same emotional investment as they would in the case.

A fourth type of training is where the participant is trained by two people, a specialist communications trainer and a barrister. There is detailed familiarisation with the court process, followed by cross-examination on topics that the participant has selected in advance, and which are personal to them.

The barrister ensures the witness experiences what it is like to be expertly cross-examined on subjects that are both important and personal to them, which creates in them as emotional engagement that is lacking in cross-examination on a part learned for a role-play. The communications expert helps control and direct the witness's emotions, their anxiety and their stress and helps them present themselves in a way so as to help familiar incongruent non-verbal communication and tone. Because of the personal nature of the topics both trainers will have a better idea of how that participant will react when giving their evidence and therefore offer tailored guidance to them.

It may well have been the case that Mr Abramovich would have given evidence in the same calm and collected manner without any familiarisation training, or that Mr James Murdoch was always going to give an improved performance to the Select Committee after his first performance. One will never truly know. The fact is that legally permissible traning is increasingly a feature in cases where clients have so much invested in a successful outcome.